Dr. Pushan Majumdar vs Union Of India & Ors.

Patherya J.

This appeal has been filed from the order dated 17th August, 2010, by the Indian Association for the Cultivation of Science (IACS) as it is neither a

‘State’ or ‘other Authority’ and the maintainability issue of the writ petition was considered and dismissed. Along with FMA No.16 of

2011, W.P.12697(W) of 2016 filed by Utpal Sadhu and W.P.28123(W) of 2012 filed by Ashoke Kumar Roy were also tagged. Counsel for the

appellant places the Memorandum of Association of IACS so also the Regulation of IACS before the Court. 1975 (1) SCC 421, 1979 (3) SCC 489,

AIR 1989 SC 1607, 2002 (5) SCC 411 and 2005 (5) SCC 75 is relied in support of its contention.

On the contra Counsel for IACS relies on AIR 1981 SC 487, AIR 1992 SC 76, 1984 (2) SCC 14, AIR 1988 SC 469, 2001 (2) CHN 762 (FB) and

1992 (1) CLJ 319. 2013 (8) SCC 345 supports the contention of the writ petitioner/appellant. In W.P.12697(W) of 2016 the Constitution of IACS was

annexed and in Regulation 7 of IACS, the formation of the Council, its Constitution and composition finds mention. Regulation 10 of the Association

also deals with financial aid given to IACS by the Government of India. In this respect Regulation 2.3 of the Bye-laws is set out hereinbelow:-

“2.3 Appointment of Director The Council shall appoint the Director with prior approval of Central Government and following Recruitment Rules

and procedures prescribed by the Government of India from time to time. [Old Rules :The Council shall appoint a Search Committee to look for

possible incumbents for the post of Director. On recommendation of the Search Committee, the Council after due ratification will forward the name/s

to the Secretary, Department of Science & Technology for taking further action as required for appointment of Director of Central Autonomous

Organizations of the Government of India. Old rule was amended vide resolution of the Governing Council under item no.4 in its 2013-2 meeting held

on 13.07.2013.]â€​

The composition of the Finance Committee is constituted as per Bye-law 4.1.2. and reads as follows:-

“4.1.2 THE FINANCE COMMITTEE

Composition:

The composition of the Finance Committee would be as follows:

i) The Chairman of the Governing Council ii) The Director

iii) One representative of the Ministry of Science & Technology, Government of India, who is also a member of the Council

iv) On Trustee member nominated by the Council

v) The Accountant-General, West Bengal or his nominee

vi) The Registrar who will be the non-member Secretary In absence of the Chairman of the Council, the members will elect a Chairman from among

themselves. Powers and Duties of the Finance Committee:

i) The Finance Committee shall make recommendation to the Council on all proposals of new demands, which shall stand referred to the Finance

Committee for opinion before being considered by the Council.

ii) It would prepare a budget for the Association for the next financial year or the next plan period. iii) To advice and recommend on any particular

initiative that has a financial implication.â€​

The Association is responsible for proper functioning of the statutory bodies. Therefore, the element of ‘State’ and ‘other Authority’ will

be relevant. IACS is amenable to jurisdiction as will appear from paragraph 38 in W.P.28123(W) of 2012. W.P.12697(W) 2016 supports the appellant

and the judgment of B.P. Banerjee, J. in 1992. In fact, IACS has paid sums to the Government of West Bengal for lands acquired on its behalf made

under the Land Acquisition Act, 1894 and compensation awarded by the Collector under the said Act. From the website of IACS it will appear that

IACS is an Autonomous Research Institution aided by a Governing Council. IACS has received 95% of its yearly funds from the Department of

Science and Technology, Government of India. A sharing amount is also given by the Government of West Bengal in favour of IACS. Therefore, a

substantial amount of the grant is provided both by Government of India and Government of West Bengal matched on share basis. IACS is an

Autonomous Institution and has been described as a Statutory Institute.

By memorandum dated 1st October 2015, the Lokpal and Lokayukta Act 2013 has been applied to its personnel in respect of declaration of assets and

liabilities similarly to the Public Servants, thereby placing the same in public domain. The faculty and staff members of IACS were also asked to make

declaration of assets and liabilities as other public servants. Under the Bye-laws, the Director of the Department of Science and Technology,

Government of India is the Chairman. Therefore, the Government of India would become a part of the Council meeting or extraordinary Council

meeting. Being a Statutory Authority, IACS would be a ‘State’ or ‘other Authority’ under Article 12 of the Constitution of India.

Therefore, the writ application filed is maintainable and the order. In view of the aforesaid the impugned judgment be set aside.

In opposing the State respondent relies on the decision of 1992 (1) CLJ 319. W.P.8619(W) of 2012 and W.P.28123(W) of 2012 though tagged with

FMA 16 of 2011 ought to be de-tagged. This appeal of 1992 was initiated by IACS and the writ petitioner/respondent was Ashok Kumar Roy.

The issues raised in W.P.3917(W) of 2010 was similar in W.P.8619(W) of 2012 and W.P.28123(W) of 2012 and it is only for this reason that the said

two writ petitions have been tagged by orders dated 10th May, 2012 and 26th July, 2016. On consideration of the 1992 decision the same cannot be

distinguished and, in fact, the said decision of 1992 is on all fours. The Department of Science and Technology (DST) was established in May, 1971

and 28 autonomous bodies were funded by DST. IACS is one amongst the 28 autonomous bodies that the Ministry of Science and Technology or

Department of Science and Technology has funded grant-in-aid to all 22 of the autonomous bodies. As grant is funded, a report is made by the

Controller and Auditor General of India and an audit report of IACS is to be disclosed. The proposed programme for 1992-93 also proposed the

performance budget. The composition of IACS in 1992 and at present is the same. The financial aspect in 1992 was similar as in 2010. Receiving of

grant is not the sole test for determining whether it is an ‘authority’ under Article 12 or not. ‘Authority’ has also been explained in

Paragraph 12 of the 1992 judgment and DST is an Advisory Authority who continues even today. Disciplinary proceedings were initiated in 1992 so

also 2010 and today.

A new molecule with regard to cancer was required to be patented in U.S, papers were prepared in foreign journals, all without permission of DST.

Therefore, IACS is nothing but an independent body. The Director of IACS is an independent body in-charge of the day to day function. All

disciplinary proceedings are started by a Committee under a Director. Budget of IACS is handled by the Council who is the absolute authority. In fact,

out of the 28 autonomous bodies of DST, 22 institutes are absolute autonomous bodies. The recruitment is also independent and is outside the aegis of

UPSC. Promotion policy of IACS is independent as per Bye-laws. IACS is also applicable to reservation. Therefore, there is no change since 1992 to

2010 or till date. The employment of service rules is as per the internal mechanism of IACS. Therefore, Government has no interference in IACS and

IACS is not a ‘State’ or other ‘Authority’ under Article 12 of the Constitution of India. Tests of agency or instrumentality is guided in

2002 (5) SCC 111 Paragraph 27. There is a difference between CSIR and IACS. CSIR was created but not so IACS. CSIR has two research bodies

which is a part of the Department of Commerce. 2013 (8) SCC 345 supports the decision of 1992 but in Paragraph 16 of the reported decision it has

been specifically stated that BCCI is not a ‘State’ or ‘other Authority’ and the test applied namely, the financial control and

administrative control so also the functions, the management and control, the extent of domination by the Government, called for rejection of the case

reported in 2013 (8) SCC 345 and its applicability.

In reply, Counsel for the appellant states that State characteristic exists in respect of IACS. Disciplinary proceedings, budget, recruitment and

reservation is controlled by DST. Recruitment is made through Union Public Service Commission. The Director of IACS is appointed and is approved

by the Appointments Committee of the Cabinet, Ministry of Personnel, Public Grievances and Pension, Government of India. The pay-scale of the

Director also is to be approved by the Appointments Committee of the Cabinet. The accounts of IACS is audited by the Director of Audits, Scientific

Department, Government of India. The case of Pradip Biswas is distinguishable from the instant case as IACS is controlled by DST. Therefore, the

case of the writ petitioner Sadhu and no document of DST calls for rejection of the writ petition so also the appeal.

Having considered the submission of the parties so also the materials produced before us, W.P.3917(W) of 2010, is directed against IACS, the

respondent no.2. The status of IACS vis-Ã -vis Article 12 of the Constitution of India came up for consideration in C.R. No.13063(W) of 1986 and

was filed by none other than the writ petitioner in W.P.28123(W) of 2012 (Ashoke kr. Roy vs. IACS & Ors.). In the said writ petition a judgment was

passed on 20th July, 1990. Being aggrieved by the said order/judgment mentioned above, an appeal was filed and the said was disposed off and

reported in 1992 (1) CLJ 319. No SLP was filed therefrom. Instead in the appeal it was held that IACS is not a ‘State’ or ‘other

Authority’. For ready reference paragraphs 7 and 12 of the reported decision is set-out hereinbelow:-

“7. In the instant case the Indian Association for the Cultivation of Science, Jadavpur is an association registered under the societies Registration

Act and is dominated by private persons. It was free to accept grants from the Governments and is only answerable to the Governments in respect of

the grants received from the Governments and that so long the Association continues to receive grants from the Government the accounts were

required to be audited by the comptroller and Auditor General of India. It is also free to apply its income and property towards the promotion of its

objectives and implementation of its programmes. It was pointed out by the learned Advocate appearing for the respondents relying on various

documents that the society received much grants from the Central Government. But receiving of grants is not the sole test for determining whether it

is an ‘authority’ under Article 12 or not. There is no provision that the society has to comply with all directions as may be issued by the Central

Government in this behalf. It is true that the Association is free to dispose of its moveable and immoveable properties and obtain loans but from this it

is clear that there was no absolute control of the Central Government over the affairs of the society. It cannot be said by any stretch of imagination

that is the Central Government who is functioning through the said society and that if the veil is lifted, it could not be seemed that though it is a body

registered under the societies Registration Act really the Central Government is running its affairs through a society. It is not controlled by the

Government in any manner whatsoever. The word ‘state’ or instrumentality of the State means that the Government is functioning though it is

in the form of a society or a cooperative society or a company and this is a decisive factor for the purpose of determining whether it is an authority

under Article 12 of the Constitution or not.â€​

“12. The next question is whether the Association is an ‘Authority’ within the meaning of Article 226 of the Constitution of India. In this

connection, reference was made by the learned Advocate appearing for the respondents to the case of (9) Anadi Mukta Sadguru Shree Muktajee

Vandajiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and ors. reported in AIR 1989 SC 1607.

In that case the Supreme Court considered the scope of ‘Authority’ under Article 226 of the Constitution of India and at paragraph 19 the

Supreme Court observed that the term ‘Authority’ used in Article 226 in the context, must receive a liberal meaning unlike the term in Article

Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art.32. Article 226 confers power on the High Courts to

issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words ‘Any person or authority’ used in Article

226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body

performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body.

The duty must be judged in the light of positive obligation owned by the person or authority to the affected party. No matter by what means the duty is

imposed. If a positive obligation exists mandamus cannot be denied. “In this case the Supreme Court referred to the observations of Professor De

Smity that†To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty

to have been imposed by charter, common law, custom or even contract.†(Judicial Review of Administrative Act, 4th Ed p.540). The ratio of the

Judgment is that whatever may be the form of the body concerned, what is relevant is nature of the duty imposed. If the duty imposed upon such

authority is of public nature or in other words a mandamus would lie for the purpose of fulfilling public duties and/or responsibilities. It is a firmly

established principles that a mandamus would not lie to enforce private duties and/or private obligations.â€​

Paragraphs 16, 17 and 18 of the 1992 decision are set-out hereinbelow:-

“16. In the instant case, admittedly, the service of the respondents is not controlled or regulated by any statute or rule having the force of law. It

was a purely contractual and outside the domain of public law. Only in case where there are some statutory protection to the service condition of an

employee, in that event it would be open for judicial review by the court. In the absence of any statutory protection or Rules and Regulations having

statutory flavor, judicial review by a writ of mandamus is not available. In this connection reference was made by the Supreme Court to the decision in

the case of Executive Committee of Valsh Degree College, Shamll v. Lakshmi Narain, AIR 1976 SC 888. In that case a dismissed lecturer of a

private college was seeking reinstatement in service. The court refused to grant the relief although it was found that the dismissal was wrongful. The

Supreme Court instead granted substantial monetary benefits to the lecture. This appears to be the preponderant judicial opinion because of the

common law principle that a service contract cannot be specifically enforced.

Accordingly, we are of the view that in the instantcase it cannot be said that the society had any public duties and/or responsibilities in so far as the

writ petitioners are concerned. As mandamus is a public law remedy and for enforcement of mandamus public duty must exist. In the instant case in

the absence of any public duty and/or public responsibility on the said society we are unable to hold that this is an authority under Article 226 of the

Constitution of India.

In the result, we uphold the preliminary objectionraised on behalf of the appellant that the Indian Association for the Cultivation of Science,

Jadavpur is not an ‘authority’ within the meaning of Articles 12 and 226 of the Constitution and as such no writ lies against the appellant

association. In view of our determination with regard to the preliminary point it is not necessary on our part to go into the merits of this case.

Accordingly, the order of the learned trial Judge dated 20th July, 1990 passed in C.R. 13063(W) of 1986 is set aside. Even though we have held that

no writ lies against the appellant Association we are of the view that considering the facts and circumstances of the case, the appellants will consider

the case of the respondents to provide with any alternative job either as a regular staff or jobs under other research projects as he was performing as

in our view, it is very difficult to get job at this age and accordingly this court desires the case of the respondents for its sympathetic consideration

considering the fact that they were rendering service for a long time under various projects under the umbrella of Indian Association for the

Cultivation of Science, Jadavpur.â€​

Ashoke Kr. Roy was the writ petitioner in Civil Rule No.13063(W) of 1986 and the appeal court set-aside the order dated 20th July 1990, whereby it

was held in (1992) 1 CLJ 319, that IACS is not an ‘authority’ or ‘state’ under Article 12 of the Constitution of India. This issue therefore

was decided and W.P.28123(W) of 2012 filed by Ashoke Kumar Roy is dismissed.

In view of the aforesaid the order dated 17th August 2010 calls for no interference and FMA 16 of 2011 and connected FMAs also stand dismissed.

W.P.12697(W) of 2016, for the same reason set out hereinabove, is also dismissed.Let a certified copy of this order, if applied for, be given to the

parties on priority basis upon compliance of all formalities.